4/01/2006

County has place in battle over eminent domain: Arkansas City (KS) Traveler, 2/1/06

By John Hanna, Associated Press

Decades ago, Bill House chose ranching over practicing law. Developers expressed interest a few years ago in buying his property in Cowley County. House wasn't much interested but soon learned there were ways to force a sale.

House came Tuesday to the Statehouse  a week after celebrating his 90th birthday  to ask legislators to enact legal and constitutional protections for property rights. He and other Kansans want legislators to limit the power of state and local governments to force property sales.

The issue became hot last year, after the U.S. Supreme Court ruled that states could force sales for private economic development projects without violating property owners' constitutional rights. House and other Kansans don't like the idea that they could be forced to sell their property so that someone else can develop it.

The Senate Judiciary Committee is reviewing two proposed constitutional amendments and three bills on the topic, including a measure backed by the League of Kansas Municipalities. The panel began hearings Tuesday and planned to continue them Wednesday and Friday.

House, recalling his law-school lessons from the 1930s, noted that protections against eminent domain  the legal term for government taking property  go back to the Magna Carta of 1215, when angry English barons forced King John to accept written limits on his power.

Developers wanted House's land so they could create a lake and build a resort around it. Local opposition caused legislators to intervene and block the project in 2004, but until then, House said, the developers were confident they could obtain his property.

"They indicated pretty strongly that they could take it,'' House said. ''I couldn't believe it."

The proposed amendments to the Kansas Constitution would prevent the transfer of property from one private owner, through government hands, to another.

One version would create a total ban; the other would allow the Legislature to make exceptions to the ban.

The league's bill would require governments taking private property for economic development purposes to see that its owners are paid 25 percent more than its fair market value. Also, each project would require a plan and public hearings.

Don Moler, the league's executive director, said after Tuesday's hearing that it's seeking middle ground. He said legislators can't divorce the debate over eminent domain from economic development.

For example, he noted the commercial development around Kansas Speedway in Wyandotte County, which required the purchase of 150 properties, a handful through eminent domain.

"This state needs all the economic development tools available," he said.

And Gene Merry, of Burlington, a Coffey County commissioner, said local officials are cautious about using their power to force sales. He said he has never voted to use eminent domain for economic development projects.

"We view the power of eminent domain as a last resort," he said.

But Donna Martin, who lives near Dexter, said Kansans shouldn't have to face the prospect of being forced to sell their property.

"Real economic development in America doesn't want or need land grabbers," she said. "We do not want to be thrown away in order for someone more powerful and more influential to take away what it took us a lifetime to build."

Legislators in 40 states are considering limits on governments' power to force sales, but Kansas is among those where the potential for abuse is greatest, said Steven Anderson, coordinator of the Castle Coalition, a national property rights effort.

Kansas and North Carolina are the only states without constitutional provisions limiting governments' power to take property.

"Kansas property owners now stand naked and unprotected," said Kris Kobach, a University of Missouri-Kansas City law professor.

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